ARTICLE III
COOPER’S POND HOMEOWNERS’ ASSOCIATION
COOPER’S POND HOMEOWNERS’ ASSOCIATION
Section 3.01 Purposes, Powers and Duties of The Association. The Association has been formed as a non-profit civic organization for the sole purpose of performing certain functions for the common good and general welfare of the Owners of Lots. The Association shall have no power or duty to do or to perform any act or thing other than those acts and things which will promote in some way the common good and general welfare of the people of the Development. To the extent, and only to the extent, necessary to carry out such purpose, the Association (a) shall have all of the powers of a corporation organized under the Georgia Non-Profit Corporation Code and (b) shall have the power and duty to exercise all of the rights, powers and privileges and to perform all of the duties and obligations of the Association as set forth in this Declaration.
Section 3.02 Membership in the Association. Every Owner shall automatically be a member of the Association and such membership shall terminate only as provided in this Declaration of Covenants, Restrictions and Easements.
Section 3.03 Voting Rights. Each Owner shall be entitled to one (1) vote. Where such Owner is a group or entity other than one individual person, the vote on behalf of such Owner shall be exercised only by such individual person as shall be designated in a proxy instrument duly executed by or on behalf of such group or entity and delivered to the secretary of the Association. The Development will be composed of Lots to be developed in phases containing unequal numbers of Lots. Each such phase will be platted of record in the Office of the Clerk of the Superior Court of Gwinnett County in accordance with Article X of this Declaration. The Declarant shall notify the Association in writing when the final phase of the Development has been so platted of record. By acceptance of a deed conveying a Lot, each Owner acknowledges that, upon the filing by Declarant of the subdivision plats covering such phases, the total number of votes outstanding shall be increased to include the Lots added by each such new phase. Nothing contained herein shall obligate the Declarant to develop any proposed phase of the Development
unless such phase is subjected to this Declaration.
unless such phase is subjected to this Declaration.
Section 3.04 Board of Directors. The affairs of the Association shall be managed by a Board of Directors. The number of Directors and the method of election of Directors shall be as set forth in the By-Laws of the Association.
Section 3.05 Suspension of Membership. The Board may suspend the voting rights of any member and the right of enjoyment of the Common Property of any person who:
(a) shall be subject to the Right of Abatement, as defined in Section 8.02 by reason of having failed to take the reasonable steps to remedy a violation or breach of either the Restrictions or the Design Standards of the ACC (as herein defined) within thirty (30) days after having received notice of the same pursuant to the provisions of Section 5.11, 6.14 or 8.02 hereof; or
(b) shall be delinquent in the payment of any assessment levied by the Association pursuant to the provisions of Article IV hereof; or
(c) shall be in violation of the rules and regulations of the Association relating to the use, operation and maintenance of Common Property. Such suspension shall be for the balance of the period in which said Member or person shall remain in violation, breach or default, as aforesaid, except that in the case of a violation described in subsection (c) of this Section 3.05, the suspension may be for a period not to exceed 60 days after the cure or termination of such violation. No such suspension shall prevent an Owner’s ingress to or egress from his Lot.
Section 3.06 Termination of Membership. Membership shall cease only when a person ceases to be an Owner.
(a) shall be subject to the Right of Abatement, as defined in Section 8.02 by reason of having failed to take the reasonable steps to remedy a violation or breach of either the Restrictions or the Design Standards of the ACC (as herein defined) within thirty (30) days after having received notice of the same pursuant to the provisions of Section 5.11, 6.14 or 8.02 hereof; or
(b) shall be delinquent in the payment of any assessment levied by the Association pursuant to the provisions of Article IV hereof; or
(c) shall be in violation of the rules and regulations of the Association relating to the use, operation and maintenance of Common Property. Such suspension shall be for the balance of the period in which said Member or person shall remain in violation, breach or default, as aforesaid, except that in the case of a violation described in subsection (c) of this Section 3.05, the suspension may be for a period not to exceed 60 days after the cure or termination of such violation. No such suspension shall prevent an Owner’s ingress to or egress from his Lot.
Section 3.06 Termination of Membership. Membership shall cease only when a person ceases to be an Owner.
Section 3.07 Voting Procedures. The procedures for the election of Directors of the Association and the resolution of such other issues as may be brought before the membership of the Association shall be governed by this Declaration, the Georgia Non-Profit Corporation Code, the Articles of Incorporation of the Association and the By-Laws of the Association, as each shall
from time to time be in force and effect.
from time to time be in force and effect.
Section 3.08 Control by Declarant. Notwithstanding any other language or provision to the contrary in this Declaration, in the Articles of Incorporation, or in the By-Laws of the Association, Declarant hereby retains the right to appoint and remove any and all members of the Board of the Association and any officer or officers of the Association until such time as the first of the following events shall occur: (i) the expiration of five (5) years after the date of the recording of this Declaration; (ii) the date upon which all of the Lots have been conveyed by Declarant to Owners other than a person or persons constituting Declarant; or (iii) the surrender by Declarant of the authority to appoint and remove directors and officers by an express amendment to this Declaration executed and recorded by Declarant. Upon the expiration of the period of Declarant’s right to appoint and remove directors and officers of the Association pursuant to the provisions of this Section, such right shall automatically pass to the Owners, including Declarant if Declarant then owns one or more Lots and a special meeting of the Association shall be called at such time. At such special meeting the owners shall elect a new Board of Directors which shall undertake the responsibilities of the Board and Declarant shall deliver the books, accounts, and records, if any, which Declarant has kept on behalf of the Association and any agreements or contracts executed by or on behalf of the Association during such period which Declarant has in its position. Each owner by acceptance of a deed to or other conveyances of a Lot irrevocably vests in Declarant such authority to appoint and remove directors and officers of the Association as provided in this Section. The Association may exercise any other right or privilege given to it expressly by this Declaration or by law and any other right or privilege reasonably necessary to effectuate any such
right or privilege.
right or privilege.
ARTICLE IV
ASSESSMENTS
ASSESSMENTS
Section 4.01 Covenant for Assessments and Creation of Lien and Personal Obligations.The Declarant, to the extent that Declarant is an Owner, hereby covenants and agrees, and each Owner, jointly and severally, for himself, his heirs, distributes, legal representatives, successors and assigns, by acceptance of a deed for a Lot, whether or not the covenants contained hereby shall be expressed in any such deed, hereby covenants and agrees as follows:
(a) to pay to the Association the annual assessments which may or shall be levied by the Association pursuant to this Declaration against all Lots owned by him;
(b) to pay to the Association any special assessments for capital improvements and other charges which may or shall be levied by the Association pursuant to this Declaration against all Lots owned by such Owner;
(c) that there is hereby created a continuing charge and lien upon all lots owned by him to secure payment of such assessments and any interest thereon as provided in Section 4.09 hereof and costs of collection including reasonable attorneys’ fees;
(d) that such continuing charge and lien on such Lots binds such Lots in the hands of the then Owner, and the Owner’s heirs, devisees, legal representatives, successors and assigns. Such charge and lien is superior to any and all charges, liens or encumbrances which may hereafter in any manner arise or be imposed upon such Lots whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage, deed to secure debt, or other instrument, except (i) such liens for taxes or other public charges as are by applicable law made superior, and (ii) all first lien and purchase money secondary deeds to secure debt given to secure a loan from an institutional lender which makes residential mortgage loans in the ordinary and
primary course of its business.
(e) that no sale or transfer at foreclosure or in lieu of foreclosure shall relieve any Lot or Lots from liability for any assessment thereafter assessed, excepting only as provided in paragraph (d)(ii) above;
(f) that all annual and special assessments (together with interest thereon as provided in Section 4.09 of this Declaration and costs of collection including reasonable attorney’s fees) levied against any Lot or Lots owned by him during the period that he is an owner shall be (in addition to being a continuing charge and lien against such Lot or Lots as provided in
(a) to pay to the Association the annual assessments which may or shall be levied by the Association pursuant to this Declaration against all Lots owned by him;
(b) to pay to the Association any special assessments for capital improvements and other charges which may or shall be levied by the Association pursuant to this Declaration against all Lots owned by such Owner;
(c) that there is hereby created a continuing charge and lien upon all lots owned by him to secure payment of such assessments and any interest thereon as provided in Section 4.09 hereof and costs of collection including reasonable attorneys’ fees;
(d) that such continuing charge and lien on such Lots binds such Lots in the hands of the then Owner, and the Owner’s heirs, devisees, legal representatives, successors and assigns. Such charge and lien is superior to any and all charges, liens or encumbrances which may hereafter in any manner arise or be imposed upon such Lots whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage, deed to secure debt, or other instrument, except (i) such liens for taxes or other public charges as are by applicable law made superior, and (ii) all first lien and purchase money secondary deeds to secure debt given to secure a loan from an institutional lender which makes residential mortgage loans in the ordinary and
primary course of its business.
(e) that no sale or transfer at foreclosure or in lieu of foreclosure shall relieve any Lot or Lots from liability for any assessment thereafter assessed, excepting only as provided in paragraph (d)(ii) above;
(f) that all annual and special assessments (together with interest thereon as provided in Section 4.09 of this Declaration and costs of collection including reasonable attorney’s fees) levied against any Lot or Lots owned by him during the period that he is an owner shall be (in addition to being a continuing charge and lien against such Lot or Lots as provided in
Section 4.01(c) of this Declaration) a personal obligation which will survive any sale or transfer of the Lot or Lots owned by him; provided, however, that such personal obligation for delinquent assessments shall not pass to an Owner’s successor in title unless expressly assumed by such successor.
Section 4.02 Purpose of Assessment. The assessments levied by the Association shall be used exclusively for the purpose of providing for the common good and general welfare of the Owners of Lots, including, but not limited to, security, the acquisition, construction, improvement, maintenance and equipping of Common Property, the enforcement of the Restrictions contained in this Declaration, the enforcement of the Design Standards of the ACC, the payment of operating costs and expenses of the Association and the payment of all principal and interest when due on all debts owed by the Association.
Section 4.03 Accumulation of Funds Permitted. The Association shall not be obligated to spend in any calendar year all the sums collected in such year by way of annual assessments or otherwise, and may carry forward, as surplus, any balances remaining; nor shall the Association be obligated to apply such surplus to the reduction of the amount of the Annual Assessments in any succeeding year, but may carry forward from year to year such surplus as the Board may deem to be desirable for the greater financial security of the Association and the effectuation of its purposes.
Section 4.04 Maximum Annual Assessment.
(a) Beginning on the Commencement Date (as defined in paragraph 4.08) and continuing thereafter until January 1 of the year immediately following the Commencement Date, each Lot shall be subject to a maximum annual assessment of Three Hundred ($300.00) Dollars per Lot. In the event that the Commencement Date falls on a day other than January 1, the annual assessment for such year shall be prorated so that each Owner pays an annual assessment proportional to the number of days remaining in the calendar year. The words “Assessment Year” as used herein shall mean the calendar year. The first Assessment Year shall commence on January 1 of the calendar year immediately following the Commencement Date.
(b) Commencing with the first Assessment Year and continuing thereafter, the maximum annual assessment may be increased by the Board at any time and from time to time during each Assessment Year, but not more than five percent (5%) above the maximum annual assessment for the previous Assessment Year without the vote of the Membership as provided in paragraph (c) below.
(c) Commencing with the first Assessment Year and continuing thereafter, the maximum annual assessment for each Assessment Year may at any time and from time to time be increased more than five percent (5%) above the maximum annual assessment for the previous Assessment Year if such increase is approved by a two-thirds (2/3) vote of the Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association and this Declaration.
(a) Beginning on the Commencement Date (as defined in paragraph 4.08) and continuing thereafter until January 1 of the year immediately following the Commencement Date, each Lot shall be subject to a maximum annual assessment of Three Hundred ($300.00) Dollars per Lot. In the event that the Commencement Date falls on a day other than January 1, the annual assessment for such year shall be prorated so that each Owner pays an annual assessment proportional to the number of days remaining in the calendar year. The words “Assessment Year” as used herein shall mean the calendar year. The first Assessment Year shall commence on January 1 of the calendar year immediately following the Commencement Date.
(b) Commencing with the first Assessment Year and continuing thereafter, the maximum annual assessment may be increased by the Board at any time and from time to time during each Assessment Year, but not more than five percent (5%) above the maximum annual assessment for the previous Assessment Year without the vote of the Membership as provided in paragraph (c) below.
(c) Commencing with the first Assessment Year and continuing thereafter, the maximum annual assessment for each Assessment Year may at any time and from time to time be increased more than five percent (5%) above the maximum annual assessment for the previous Assessment Year if such increase is approved by a two-thirds (2/3) vote of the Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association and this Declaration.
Section 4.05 Special Assessments for Capital Improvements. In addition to the annual assessments authorized by this Article IV, the Association may levy, in any Assessment Year and with such frequency as the Association shall deem necessary, special assessments for the purpose of paying, in whole or in part, for the cost of any construction, reconstruction, repair or replacement of a capital improvement on the Common Property, provided that any such special assessments shall have been approved by a two thirds (2/3) vote of the Members of the Association who are present in person or by proxy at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association and this Declaration.
Section 4.06 Assessment Procedure.
(a) The board shall establish the annual assessment for each Assessment Year at an amount not in excess of the maximum annual assessment as determined by the provisions of this Article IV, and shall also establish the date during the Assessment Year on which the annual assessment shall be due and payable (such date is hereinafter referred to as the “Due Date”). The Board shall cause the Association to send to each Owner at least thirty (30) days in advance of the Due Date written notice setting forth the amount of the annual assessment and the Due Date. The annual assessment shall become due on the thirtieth (30th) day following such written notice or the Due Date, whichever is later. The Board may establish reasonable payment procedures to allow
or require payment of the annual assessment in installments during the Assessment Year. The Board shall also establish payment procedures for payment of any special assessments for capital improvements which may be levied in accordance with the provisions of this Article IV.
(b) All Members of the Association shall be given written notice by the Board not less than thirty (30) nor more than sixty (60) days in advance of any meeting of the Members of the Association at which the Board shall propose taking action pursuant to Section 4.04(c) and Section 4.05 of this Article IV. Such written notice shall specify under which Section or Sections the Board will propose action. At such meeting, the presence of Members or of proxies entitled to cast sixty percent (60%) of the total votes outstanding shall constitute a quorum. If the required quorum is not present at such meeting, a second meeting may be called by the Board subject to the same notice requirement, and the required quorum at such second meeting shall be thirty percent (30%) of the total votes outstanding. No such second meeting shall be held more than sixty (60) days following the first meeting.
(a) The board shall establish the annual assessment for each Assessment Year at an amount not in excess of the maximum annual assessment as determined by the provisions of this Article IV, and shall also establish the date during the Assessment Year on which the annual assessment shall be due and payable (such date is hereinafter referred to as the “Due Date”). The Board shall cause the Association to send to each Owner at least thirty (30) days in advance of the Due Date written notice setting forth the amount of the annual assessment and the Due Date. The annual assessment shall become due on the thirtieth (30th) day following such written notice or the Due Date, whichever is later. The Board may establish reasonable payment procedures to allow
or require payment of the annual assessment in installments during the Assessment Year. The Board shall also establish payment procedures for payment of any special assessments for capital improvements which may be levied in accordance with the provisions of this Article IV.
(b) All Members of the Association shall be given written notice by the Board not less than thirty (30) nor more than sixty (60) days in advance of any meeting of the Members of the Association at which the Board shall propose taking action pursuant to Section 4.04(c) and Section 4.05 of this Article IV. Such written notice shall specify under which Section or Sections the Board will propose action. At such meeting, the presence of Members or of proxies entitled to cast sixty percent (60%) of the total votes outstanding shall constitute a quorum. If the required quorum is not present at such meeting, a second meeting may be called by the Board subject to the same notice requirement, and the required quorum at such second meeting shall be thirty percent (30%) of the total votes outstanding. No such second meeting shall be held more than sixty (60) days following the first meeting.
Section 4.07 Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots.
Section 4.08 Commencement Date for Assessments. All Lots shall become subject to Annual Assessments as provided for in this Article IV on the date (a) of recording of the subdivision plat for the first development phase of the Property and (b) as to additional Lots upon recordation of future plats of portions of the Contiguous Property as such Contiguous Property is subjected to the terms of this Declaration.
Section 4.09 Effect of Nonpayment of Assessments. Any Assessment which is not paid on or before the Due Date shall bear interest after the Due Date at the rate of eighteen percent (18%) per annum or at such rate as the Board may from time to time establish, provided, however, that in no event shall the board have the power to establish a rate of interest in violation of the laws of the State of Georgia. In the event of default in the payment of any one or more installments of an assessment, the Board may declare any remaining balance of the assessment at once due and payable. In the event that an Owner shall fail to pay fully any portion of any assessment prior to the date on which payment is due, such unpaid portion (including any remaining balance declared immediately due and payable in accordance with the preceding sentence), together with interest and costs of collection including reasonable attorneys’ fees, shall be a binding personal obligation of such Owner, as well as a lien on such Owner’s Lot enforceable in accordance with the provisions of this Declaration.
Section 4.10 Certificate of Payment. Upon written demand by an Owner, the Association shall within a reasonable period of time issue and furnish to such Owner a written certificate stating that all assessments (including penalties, interest and costs, if any) have been paid with respect to any Lot owned by said Owner as of the date of such certificate, or that all assessments, interest and costs have not been paid, setting forth the amount then due and payable. The Association may make a reasonable charge for the issuance of such certificate. Any such certificate, when duly issued as herein provided, shall be conclusive and binding with regard to any matter therein stated as between the Association and any bona fide purchaser of, or lender on,
the Lot in question.
the Lot in question.
Section 4.11 Approval by Declarant. Notwithstanding anything to the contrary contained herein, no assessment shall be made without the Approval of Declarant for so long as Declarant has the right to appoint officers and directors of the Association.
ARTICLE V
ARCHITECTURAL CONTROL
ARCHITECTURAL CONTROL
Section 5.01 Architectural Control Committee – Creation and Composition.
(a) An Architectural Control Committee (the “ACC”) shall be established consisting of not less than three (3) nor more than five (5) individuals, provided, however, that the ACC shall always have an uneven number of members. Notwithstanding anything to the contrary contained herein, all members of the ACC shall be appointed by the Declarant until the first to occur of (i) December 31, 2000, (ii) until every Lot is conveyed by Declarant to a party or parties who are not classified hereunder as a successor or assign of Declarant; or (iii) until voluntary surrender in writing by Declarant of its right to appoint the membership of the ACC. All costs of operating the ACC shall be borne by the Association.
(b) Each initial member of the ACC shall be appointed for a term expiring on December 31, 1986. Thereafter each member of the ACC shall be appointed for a calendar-year term. If any vacancy shall occur in the membership of the ACC by reason of death, incapacity, resignation, removal or otherwise, the remaining members of the ACC shall continue to act and such vacancy shall, subject to the provisions of 5.01(a), be filled by the Declarant (or Board, if at the time the Board has the right to appoint members of the ACC), at the earliest possible time. Any ACC member may resign at any time by giving written notice of such resignation to the Chairman of the ACC and such resignation shall take effect on receipt thereof by the Chairman. Any member of the ACC may be removed at any time with or without cause by the Declarant (or Board if at the time the Board has the right to appoint members of the ACC).
(a) An Architectural Control Committee (the “ACC”) shall be established consisting of not less than three (3) nor more than five (5) individuals, provided, however, that the ACC shall always have an uneven number of members. Notwithstanding anything to the contrary contained herein, all members of the ACC shall be appointed by the Declarant until the first to occur of (i) December 31, 2000, (ii) until every Lot is conveyed by Declarant to a party or parties who are not classified hereunder as a successor or assign of Declarant; or (iii) until voluntary surrender in writing by Declarant of its right to appoint the membership of the ACC. All costs of operating the ACC shall be borne by the Association.
(b) Each initial member of the ACC shall be appointed for a term expiring on December 31, 1986. Thereafter each member of the ACC shall be appointed for a calendar-year term. If any vacancy shall occur in the membership of the ACC by reason of death, incapacity, resignation, removal or otherwise, the remaining members of the ACC shall continue to act and such vacancy shall, subject to the provisions of 5.01(a), be filled by the Declarant (or Board, if at the time the Board has the right to appoint members of the ACC), at the earliest possible time. Any ACC member may resign at any time by giving written notice of such resignation to the Chairman of the ACC and such resignation shall take effect on receipt thereof by the Chairman. Any member of the ACC may be removed at any time with or without cause by the Declarant (or Board if at the time the Board has the right to appoint members of the ACC).
Section 5.02 Purpose, Powers and Duties of the ACC. The purpose of the ACC is to assure that any installation, construction or alteration of any Structure on any Lot shall be submitted to the ACC for approval
(i) as to whether the proposed installation, construction or alteration is in conformity and harmony of external design and general quality with the existing standards of the neighborhood and with the standards of the Cooper’s Pond Development, and
(ii) as to the location of Structures with respect to topography, finished ground elevation and surrounding Structures. To the extent necessary to carry out such purpose, the ACC shall have all of the powers and duties to do each and everything necessary, suitable, convenient or proper for, or in connection with, or incidental to, the accomplishment of such purpose, including, without being limited to, the power the duty to approve or disapprove plans and specifications for any installation, construction or alteration of any Structure on any Lot.
(ii) as to the location of Structures with respect to topography, finished ground elevation and surrounding Structures. To the extent necessary to carry out such purpose, the ACC shall have all of the powers and duties to do each and everything necessary, suitable, convenient or proper for, or in connection with, or incidental to, the accomplishment of such purpose, including, without being limited to, the power the duty to approve or disapprove plans and specifications for any installation, construction or alteration of any Structure on any Lot.
Section 5.03 Officers, Subcommittees and Compensation. The members of the ACC shall appoint a Chairman from among their number and may appoint from among their number such other officers and subcommittees of members of the ACC as they shall from time to time determine necessary. The members of the ACC shall be reimbursed by the Association for traveling expenses and other out-of-pocket costs authorized by the Board and incurred in the performance of their duties as members of the ACC. Section 5.04 Operations of the ACC.
(a) Meetings. The ACC shall hold regular meetings at least once every three
(3) months or more often as may be established by the ACC. Special meetings may be called by the Chairman at any time and shall be called by the Chairman upon the written request of a majority of the members of the ACC then in office. Regular and special meetings of the ACC shall be held at such time and at such place as the ACC shall specify. Notice of each regular or special meeting of the ACC shall be either hand delivered or mailed to each member thereof at his residence or at his usual place of business at least three (3) days before the day the meeting is to be held. Notice of regular and special meetings need not specify the purpose or purposes for which the meeting is called. Notice of a meeting need not be given to any member of the ACC who signs a waiver of notice either before or after the meeting. Attendance of a member of the ACC at a meeting shall constitute a waiver of notice of such meeting and shall constitute a waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when the member states, at the beginning of the meeting, any such objection or objections to the transaction of business. At each meeting of the ACC, the presence of a majority of the members then in office shall constitute a quorum for the transaction of business. Except as otherwise provided herein, the act of a majority of the members of the ACC present at any regular or special meeting thereof at which a quorum is present shall constitute the act of the ACC. In the absence of a quorum, any member of the ACC present at the time and place of the meeting may adjourn the meeting from time to time until a quorum shall be present. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting originally called. The ACC shall maintain both a record of votes and minutes for each of its meetings. The ACC shall make such records and minutes available at reasonable places and times for inspection by Members of the Association and by the Secretary. Any action required
to be taken at a meeting of the ACC, or any action which may be taken at a meeting of the ACC, may be taken without a meeting if written consent, setting forth the action so taken, shall be signed by all the members of the ACC and be filed within the minutes of the proceedings of the ACC. Such consent shall have the same force and effect as a unanimous vote, and may be stated as such
in any document filed by the ACC.
(b) Activities.
(i) The ACC shall adopt and promulgate the Design Standards described in Section 5.05 hereof and shall, as required, make findings, determinations, rulings, and orders with respect to the conformity with said Design Standards of plans and specifications to be submitted for approval to the ACC pursuant to the provisions of this Declaration. The ACC shall, as required, issue permits, authorizations, or approvals, which may include specified requirements or conditions, pursuant to the provisions of this Declaration.
(ii) Any two (2) or more members of the ACC may be authorized by the ACC to exercise the full authority of the ACC with respect to all matters over which the ACC has authority as may be specified by resolution of the ACC, except with respect to the adoption or promulgation of the Design Standards. The unanimous action of the two (2) or more members with respect to the matters specified shall be final and binding upon the ACC and upon any applicant for an approval, permit or authorization, subject, however, to review and modification by the ACC on its own motion or appeal by the applicant to the ACC as provided in this paragraph
(ii). Written notice of the decision of such two (2) or more members shall be given to any applicant for an approval, permit or authorization within five (5) working days after written request for action by the applicant. The applicant may, within ten (10) days after receipt of notice of any decision which he deems to be unsatisfactory, file a written request to have the matter in question appealed to the entire ACC. Upon the filing of any such request, the matter with respect to which such request was filed shall be submitted to, and reviewed promptly by, the ACC, but in no event later than thirty (30) days after the filing of such appeal request. The decision of a majority of the members of the ACC with respect to such matter shall be final and binding. The approval of plans or specifications by the ACC shall in no way subject the ACC or its members to any liability or responsibility for defects or loss sustained by virtue of the consent or approval thereof.
(a) Meetings. The ACC shall hold regular meetings at least once every three
(3) months or more often as may be established by the ACC. Special meetings may be called by the Chairman at any time and shall be called by the Chairman upon the written request of a majority of the members of the ACC then in office. Regular and special meetings of the ACC shall be held at such time and at such place as the ACC shall specify. Notice of each regular or special meeting of the ACC shall be either hand delivered or mailed to each member thereof at his residence or at his usual place of business at least three (3) days before the day the meeting is to be held. Notice of regular and special meetings need not specify the purpose or purposes for which the meeting is called. Notice of a meeting need not be given to any member of the ACC who signs a waiver of notice either before or after the meeting. Attendance of a member of the ACC at a meeting shall constitute a waiver of notice of such meeting and shall constitute a waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when the member states, at the beginning of the meeting, any such objection or objections to the transaction of business. At each meeting of the ACC, the presence of a majority of the members then in office shall constitute a quorum for the transaction of business. Except as otherwise provided herein, the act of a majority of the members of the ACC present at any regular or special meeting thereof at which a quorum is present shall constitute the act of the ACC. In the absence of a quorum, any member of the ACC present at the time and place of the meeting may adjourn the meeting from time to time until a quorum shall be present. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting originally called. The ACC shall maintain both a record of votes and minutes for each of its meetings. The ACC shall make such records and minutes available at reasonable places and times for inspection by Members of the Association and by the Secretary. Any action required
to be taken at a meeting of the ACC, or any action which may be taken at a meeting of the ACC, may be taken without a meeting if written consent, setting forth the action so taken, shall be signed by all the members of the ACC and be filed within the minutes of the proceedings of the ACC. Such consent shall have the same force and effect as a unanimous vote, and may be stated as such
in any document filed by the ACC.
(b) Activities.
(i) The ACC shall adopt and promulgate the Design Standards described in Section 5.05 hereof and shall, as required, make findings, determinations, rulings, and orders with respect to the conformity with said Design Standards of plans and specifications to be submitted for approval to the ACC pursuant to the provisions of this Declaration. The ACC shall, as required, issue permits, authorizations, or approvals, which may include specified requirements or conditions, pursuant to the provisions of this Declaration.
(ii) Any two (2) or more members of the ACC may be authorized by the ACC to exercise the full authority of the ACC with respect to all matters over which the ACC has authority as may be specified by resolution of the ACC, except with respect to the adoption or promulgation of the Design Standards. The unanimous action of the two (2) or more members with respect to the matters specified shall be final and binding upon the ACC and upon any applicant for an approval, permit or authorization, subject, however, to review and modification by the ACC on its own motion or appeal by the applicant to the ACC as provided in this paragraph
(ii). Written notice of the decision of such two (2) or more members shall be given to any applicant for an approval, permit or authorization within five (5) working days after written request for action by the applicant. The applicant may, within ten (10) days after receipt of notice of any decision which he deems to be unsatisfactory, file a written request to have the matter in question appealed to the entire ACC. Upon the filing of any such request, the matter with respect to which such request was filed shall be submitted to, and reviewed promptly by, the ACC, but in no event later than thirty (30) days after the filing of such appeal request. The decision of a majority of the members of the ACC with respect to such matter shall be final and binding. The approval of plans or specifications by the ACC shall in no way subject the ACC or its members to any liability or responsibility for defects or loss sustained by virtue of the consent or approval thereof.
Section 5.05 Design Standards.
(a) The ACC shall from time to time adopt, promulgate, amend, revoke and enforce guidelines (the “Design Standards”) for the purpose of:
(i) Governing the form and content of plans and specifications to be submitted to the ACC for approval pursuant to the provisions of this Declaration;
(ii) Governing the procedure for such submission of plans and specifications
(iii) Establishing guidelines with respect to the approval and disapproval of design features, architectural styles, exterior color and materials, details of construction, location and size of Structures and all other matters that require approval by the ACC pursuant to this Declaration; and
(iv) Assuring the conformity and harmony of external design and general quality of Cooper’s Pond Development.
(b) The ACC shall make a published copy of its current Design Standards readily available to the Members and prospective Members of the Association and to all applicants seeking the ACC’s approval. Section 5.06 Submission of Plans and Specifications. No Structure shall be commended, erected, placed, moved onto or permitted to remain on any Lot nor shall any existing Structure upon any Lot be altered in any way which materially changes the exterior appearances of the Structure or Lot, unless plans and specifications therefore shall have been submitted to and approved in writing by the ACC. Such plans and specifications shall be in such form and contain such information as may be reasonably required by the AC in the Design Standards, including,
without being limited to:
(a) a site plan showing the location of all proposed and existing Structures on the Lot including building setbacks, open space, driveways, walkways and parking spaces including the number thereof and all siltation and erosion control measures;
(b) a foundation plan;
(c) a floor plan;
(d) exterior elevations of all proposed Structures and alterations to existing Structures, as such Structures will appear after all back-filling and landscaping are completed;
(e) specifications of materials, color scheme, lighting scheme and other details affecting the exterior appearance of all proposed Structures and alterations to existing Structures; and
(f) plans for landscaping and grading.
(a) The ACC shall from time to time adopt, promulgate, amend, revoke and enforce guidelines (the “Design Standards”) for the purpose of:
(i) Governing the form and content of plans and specifications to be submitted to the ACC for approval pursuant to the provisions of this Declaration;
(ii) Governing the procedure for such submission of plans and specifications
(iii) Establishing guidelines with respect to the approval and disapproval of design features, architectural styles, exterior color and materials, details of construction, location and size of Structures and all other matters that require approval by the ACC pursuant to this Declaration; and
(iv) Assuring the conformity and harmony of external design and general quality of Cooper’s Pond Development.
(b) The ACC shall make a published copy of its current Design Standards readily available to the Members and prospective Members of the Association and to all applicants seeking the ACC’s approval. Section 5.06 Submission of Plans and Specifications. No Structure shall be commended, erected, placed, moved onto or permitted to remain on any Lot nor shall any existing Structure upon any Lot be altered in any way which materially changes the exterior appearances of the Structure or Lot, unless plans and specifications therefore shall have been submitted to and approved in writing by the ACC. Such plans and specifications shall be in such form and contain such information as may be reasonably required by the AC in the Design Standards, including,
without being limited to:
(a) a site plan showing the location of all proposed and existing Structures on the Lot including building setbacks, open space, driveways, walkways and parking spaces including the number thereof and all siltation and erosion control measures;
(b) a foundation plan;
(c) a floor plan;
(d) exterior elevations of all proposed Structures and alterations to existing Structures, as such Structures will appear after all back-filling and landscaping are completed;
(e) specifications of materials, color scheme, lighting scheme and other details affecting the exterior appearance of all proposed Structures and alterations to existing Structures; and
(f) plans for landscaping and grading.
Section 5.07 Approval of Plans and Specifications. Upon approval by the ACC of any plans and specifications submitted pursuant to this Declaration, a copy of such plans and specifications, as approved, shall be deposited for permanent record with the ACC and a copy of such plans and specifications bearing such approval, in writing, shall be returned to the applicant submitting the same. Approval for use in connection with any Lot of Structure of any plans and specifications shall not be deemed a waiver of the ACC’s right, in its discretion, to disapprove similar plans and specifications or any of the features or elements included therein if such plans, specifications features or elements are subsequently submitted for use in connection with any other Lot or Structure. Approval of any such plans and specifications relating to any Lot or Structure, however, shall be final as to that Lot or Structure and such approval may not be revoked or rescinded thereafter, provided that there has been adherence to, and compliance with, such plans and specifications, as approved, and any conditions attached to any such approval.
Section 5.08 Disapproval of Plans and Specifications.The ACC shall have the right to disapprove any plans and specifications submitted pursuant to this Declaration because of any of the following:
(a) the failure to include information in such plans and specifications as may have been reasonably requested;
(b) the failure of such plans or specifications to comply with this Declaration or the Design Standards;
(c) any other matter, which in the judgment of the ACC, would be likely to cause the proposed installation, construction or alteration of a Structure (i) to fail to be in conformity and harmony of external design and general quality with the standards of Cooper’s Pond Development as set forth in the Design Standards, or (ii) as to location to be incompatible with topography, finished ground elevation and surrounding Structures. In any case in which the ACC shall disapprove any plans and specifications submitted hereunder, or shall approve the same only as modified or upon specified conditions, such disapproval or qualified approval shall be accompanied by a statement of the grounds upon which such action was based. In any case the ACC shall, if requested, make reasonable efforts to assist and advise the applicant in order that an acceptable proposal may be prepared and submitted for approval.
(a) the failure to include information in such plans and specifications as may have been reasonably requested;
(b) the failure of such plans or specifications to comply with this Declaration or the Design Standards;
(c) any other matter, which in the judgment of the ACC, would be likely to cause the proposed installation, construction or alteration of a Structure (i) to fail to be in conformity and harmony of external design and general quality with the standards of Cooper’s Pond Development as set forth in the Design Standards, or (ii) as to location to be incompatible with topography, finished ground elevation and surrounding Structures. In any case in which the ACC shall disapprove any plans and specifications submitted hereunder, or shall approve the same only as modified or upon specified conditions, such disapproval or qualified approval shall be accompanied by a statement of the grounds upon which such action was based. In any case the ACC shall, if requested, make reasonable efforts to assist and advise the applicant in order that an acceptable proposal may be prepared and submitted for approval.
Section 5.09 Obligation to Act. The ACC shall take action on any plans and specifications properly submitted as herein provided within thirty (30) days after receipt thereof. Approval by the ACC, if granted, together with any conditions imposed by the ACC, shall be placed in writing on the plans and specifications and shall be returned to the applicant. Failure by ACC to take action within thirty (30) days of receipt of plans and specifications submitted for approval shall be deemed approval of such plans and specifications as submitted.
Section 5.10 Inspection Rights. Any duly authorized agent of the Association or the ACC may, after reasonable notice, at any reasonable time enter upon any Lot and Structure thereon for the purpose of ascertaining whether the installation, construction, alteration or maintenance of any Structure or the use of any Lot or Structure is in compliance with the provisions of this Declaration; and, neither the Association, nor the ACC, nor any such agent shall be deemed to have committed a trespass or other wrongful act solely by reason of such entry or inspection, provided such inspection is carried out in accordance with the terms of this action.
Section 5.11 Violations. If any Structure shall be erected, placed, maintained or altered upon any Lot, otherwise than in accordance with the plans and specifications approved by the ACC pursuant to the provisions of this Article, such erection, placement, maintenance or alteration shall be deemed to have been undertaken in violation of this Article and without the approval required herein. If in the opinion of the ACC such violation shall have occurred, the ACC shall notify the Association. If the Board shall agree with the determination of the ACC with respect to the violation, then the Board shall provide written notice to the Owner by certified mail, setting forth in reasonable detail in nature of the violation and the specific action or actions required to remedy the violation. If the Owner shall not have taken reasonable steps toward the required remedial action within thirty (30) days after the mailing of the aforesaid notice of violation, then the Association shall have the Right of Abatement as provided in Section 8.02 hereof.
Section 5.12 Certification of Compliance.
(a) Upon completion of the installation, construction or alteration of any Structure in accordance with plans and specifications approved by the ACC, the ACC shall, upon written request of the Owner thereof or upon the ACC’s own initiative, issue a Certificate of Compliance, identifying such Structure and the Lot upon which such Structure is placed, and stating that the plans and specifications have been approved and that such Structure complies with such plans and specifications. A copy of said Certificate shall be filed for permanent record with the plans and specifications on file with the ACC.
(b) Any certificate of Compliance issued in accordance with the provisions of this Section shall be prima facie evidence of the facts therein stated; and as to any purchaser or encumbrancer in good faith and for value, or as to any title insurer, such certificate shall be conclusive evidence that all Structures on the Lot comply with all the requirements of this Article, provided, however, that the Certificate shall in no way be construed to certify the acceptability, sufficiency or approval by the ACC or the actual construction of Structures or of the workmanship, or to represent or warrant to any one the quality, function, or operation of the Structures or any
construction, workmanship, engineering, materials or equipment. The issuance of the Certificate shall in no way be construed to certify to any party that the Structures have been built in accordance with any applicable rule or regulation.
(a) Upon completion of the installation, construction or alteration of any Structure in accordance with plans and specifications approved by the ACC, the ACC shall, upon written request of the Owner thereof or upon the ACC’s own initiative, issue a Certificate of Compliance, identifying such Structure and the Lot upon which such Structure is placed, and stating that the plans and specifications have been approved and that such Structure complies with such plans and specifications. A copy of said Certificate shall be filed for permanent record with the plans and specifications on file with the ACC.
(b) Any certificate of Compliance issued in accordance with the provisions of this Section shall be prima facie evidence of the facts therein stated; and as to any purchaser or encumbrancer in good faith and for value, or as to any title insurer, such certificate shall be conclusive evidence that all Structures on the Lot comply with all the requirements of this Article, provided, however, that the Certificate shall in no way be construed to certify the acceptability, sufficiency or approval by the ACC or the actual construction of Structures or of the workmanship, or to represent or warrant to any one the quality, function, or operation of the Structures or any
construction, workmanship, engineering, materials or equipment. The issuance of the Certificate shall in no way be construed to certify to any party that the Structures have been built in accordance with any applicable rule or regulation.
Section 5.13 Fees. The ACC may impose and collect a reasonable and appropriate fee to cover the cost of inspections performed pursuant to Section 5.10. The fee shall be established from time to time by the ACC and published in the Design Standards.
ARTICLE VI
GENERAL COVENANTS AND RESTRICTIONS
GENERAL COVENANTS AND RESTRICTIONS
Section 6.01 Application. The covenants and restrictions contained in this Article VI shall pertain and apply to all Lots and to all Structures erected thereon.
Section 6.02 Restriction of Use. Lots may be used for single-family residences only and for no other purpose, provided that Declarant may operate a Sales Office and/or Model Home on a Lot or Lots designated by Declarant.
Section 6.03 Resubdivision of Property. No Lot may be split, divided, or subdivided for sales, resale, gift, transfer, or otherwise, without the prior written approval of the ACC of plans and specifications for such split, division or subdivision.
Section 6.04 Erosion Control. No activity which may create erosion or siltation problems shall be undertaken on any Lot without the prior written approval of the ACC of plans and specifications for the prevention and control of such erosion or siltation. The ACC may, as a condition or approval of such plans and specifications, require the use of certain means of preventing and controlling such erosion or siltation. Such means may include (by way of example and not of limitation) physical devices for controlling the run-off and drainage of water, special precautions in grading and otherwise changing the natural landscape, and required landscaping as provided for in Section 6.05. Guidelines for the prevention and control of erosion and siltation
may be included in the Design Standards of the ACC. Section 6.05 Landscaping. No construction or alteration of any Structure shall take place without the prior written approval by the ACC of plans and specifications for the landscaping to accompany such construction or alteration. Guidelines for the landscaping to accompany the construction or alteration of any Structure shall be included in the Development Guidelines of the ACC.
may be included in the Design Standards of the ACC. Section 6.05 Landscaping. No construction or alteration of any Structure shall take place without the prior written approval by the ACC of plans and specifications for the landscaping to accompany such construction or alteration. Guidelines for the landscaping to accompany the construction or alteration of any Structure shall be included in the Development Guidelines of the ACC.
Section 6.06 Trees. No tree having a diameter of six (6) inches or more (measured at a point two (2) feed above ground level) shall be removed from any Lot unless such removal is in conformity with approved landscaping plans and specifications submitted pursuant to the provisions of Section 6.05 hereof. Guidelines relating to the preservation of trees and other natural resources and wildlife upon the Property may be included in the Design Standards of the ACC.
Section 6.07 Temporary Buildings. No temporary building, trailer, garage or building under construction shall be used, temporarily or permanently, as a residence on any Lot except as temporary sleeping or living quarters require or desirable for security purposes in accordance with plans and specifications therefor approved by the ACC. No contractor or builder shall erect on any Lot, any temporary building or shed for use in connection with construction on such Lot.
Section 6.08 Sign.
(a) No signs whatsoever (including but not limited to commercial and similar signs) shall, without the ACC’s prior written approval of plans and specifications therefore, be installed, altered or maintained on any lot, or on any portion of a Structure visible from the exterior thereof, except:
(i) Such signs as may be required by legal proceedings;
(ii) Not more than one “For Sale” or “For Rent” sign, such sign having a maximum faces area of four square feet; provided, however, that if, at the time of any desired use of such sign, the Association is making “For Sale” or “For Rent” signs available at a reasonable cost for the use of Owners, the signs made available by the Association must be used;
(iii) Directional signs for vehicular or pedestrian safety in accordance with plans and specifications approved by the ACC.
(b) In no event during approved construction of any Structure shall more than one job identification sign be approved by the ACC. Except as provided in the Design Standards, no “Sold” sign shall at any time be installed or maintained on any Lot or on any portion of the Structure visible from the exterior thereof.
(a) No signs whatsoever (including but not limited to commercial and similar signs) shall, without the ACC’s prior written approval of plans and specifications therefore, be installed, altered or maintained on any lot, or on any portion of a Structure visible from the exterior thereof, except:
(i) Such signs as may be required by legal proceedings;
(ii) Not more than one “For Sale” or “For Rent” sign, such sign having a maximum faces area of four square feet; provided, however, that if, at the time of any desired use of such sign, the Association is making “For Sale” or “For Rent” signs available at a reasonable cost for the use of Owners, the signs made available by the Association must be used;
(iii) Directional signs for vehicular or pedestrian safety in accordance with plans and specifications approved by the ACC.
(b) In no event during approved construction of any Structure shall more than one job identification sign be approved by the ACC. Except as provided in the Design Standards, no “Sold” sign shall at any time be installed or maintained on any Lot or on any portion of the Structure visible from the exterior thereof.
Section 6.09 Setbacks. In approving plans and specifications for any proposed Structure, the ACC may establish setback requirements for the location of such Structure. Guidelines for setbacks may be included in the Design Standards of the ACC. No Structures shall be erected or placed on any Lot unless its location is consistent with such setbacks.
Section 6.10 Fences. No fence or wall of any kind shall be erected, maintained, or altered on any Lot without the prior written approval of the ACC of plans and specifications for such fences and walls. Guidelines relating to the design, location and uses of fences and walls may be included in the Design Standards of the ACC.
Section 6.11 Roads and Driveways. No road or driveway shall be constructed or altered on any Lot without the prior written approval of the ACC of plans and specifications of such road and driveway. Guidelines relating to the design and location of roads and driveways may be included in the Design Standards of the ACC.
Section 6.12 Antennae. No exterior television or radio antennae of any sort shall be placed, allowed or maintained upon any portion of a Structure or Lot without prior written approval by the ACC. No antennae shall be installed or used for the purpose of transmitting of electronic signals.
Section 6.13 Clotheslines, Garbage Cans, Etc. All clotheslines, equipment, garbage cans, woodpiles shall be kept screened by adequate planting or approved fencing so as to conceal them from view by neighboring residences and streets.
Section 6.14 Maintenance. Each Owner shall keep and maintain each Lot and Structure owned by him, as well as all landscaping located thereof, in good condition and repair, including, but not limited to
(i) the repairing and painting (or other appropriate external care) of all Structures;
(ii) the seeding, watering and mowing of all lawns; and (iii) the pruning and trimming of all trees, hedges and shrubbery so that the same are not obstructive of a view by motorists or pedestrians of street traffic. If in the opinion of the ACC, any Owner shall fail to perform the duties imposed by this Section, the ACC shall notify the Association. If the Board shall agree with the determination of the ACC with respect to the failure of said Owner to perform the duties imposed by this Section, then the Board shall give written notice to the Owner to remedy the condition in question, setting forth in reasonable detail the nature of the condition and the specific action or actions needed to be taken to remedy such condition. If the Owner shall fail to take reasonable steps to remedy the condition with thirty (30) days after the mailing of said written notice by certified mail, then the Association shall have the Right of Abatement as provided in Section 8.02 hereof. Guidelines relating to the maintenance of Structures and landscaping may be included in the Design Standards of the ACC.
(ii) the seeding, watering and mowing of all lawns; and (iii) the pruning and trimming of all trees, hedges and shrubbery so that the same are not obstructive of a view by motorists or pedestrians of street traffic. If in the opinion of the ACC, any Owner shall fail to perform the duties imposed by this Section, the ACC shall notify the Association. If the Board shall agree with the determination of the ACC with respect to the failure of said Owner to perform the duties imposed by this Section, then the Board shall give written notice to the Owner to remedy the condition in question, setting forth in reasonable detail the nature of the condition and the specific action or actions needed to be taken to remedy such condition. If the Owner shall fail to take reasonable steps to remedy the condition with thirty (30) days after the mailing of said written notice by certified mail, then the Association shall have the Right of Abatement as provided in Section 8.02 hereof. Guidelines relating to the maintenance of Structures and landscaping may be included in the Design Standards of the ACC.
Section 6.15 Recreational Vehicles and Trailers. No house trailer, mobile home, motor home, recreational vehicle, camper, truck with camper top, boat or boat trailer or like equipment shall be permitted on any Lot on a permanent basis, but shall be allowed on a temporary basis not to (a) exceed seven (7) consecutive days or (b) twenty-five ((25) total days in any calendar year.
Section 6.16 Recreational Equipment. Recreational and playground equipment shall be placed or installed only upon the rear of a Lot, except that basketball goals, backboards and poles may be placed or installed other than upon the rear of a lot provided they are painted and maintained in accordance with the Design Standards.
Section 6.17 Waterfront Land.
(a) On Lots adjacent to lakes, ponds, rivers, streams, creeks or other water bodies or courses;
(i) no boat canal shall be dug or excavated therein, except with the prior written approval of the ACC plans and specifications for said digging and excavation.
(ii) no bulkheading, barge, docks, piling, float or other marine Structure shall be erected adjacent thereto or thereupon, without the prior written approval of the ACC of plans and specifications for such Structure; and
(iii) no refuse or any kind shall be placed on or disposed of therefrom into the adjacent waters.
(b) On lakes, ponds, rivers, streams, creeks or other water bodies or courses comprising any part of the Common Property, (i) no boat shall be moored so as to obstruct navigation; (ii) no power boat shall be used except a boat powered by an electric motor with a power rating not to exceed 3.5 horsepower; and (iii) no boat of a length greater than fifteen (15) feet, except canoes, shall be launched or used. (c) The lake which is depicted on the Plats of the Development and which may become a part of the Common Property shall be maintained only as a lake and, to this end, the Association shall not cause or permit to be caused any act or acts to the contrary.
(a) On Lots adjacent to lakes, ponds, rivers, streams, creeks or other water bodies or courses;
(i) no boat canal shall be dug or excavated therein, except with the prior written approval of the ACC plans and specifications for said digging and excavation.
(ii) no bulkheading, barge, docks, piling, float or other marine Structure shall be erected adjacent thereto or thereupon, without the prior written approval of the ACC of plans and specifications for such Structure; and
(iii) no refuse or any kind shall be placed on or disposed of therefrom into the adjacent waters.
(b) On lakes, ponds, rivers, streams, creeks or other water bodies or courses comprising any part of the Common Property, (i) no boat shall be moored so as to obstruct navigation; (ii) no power boat shall be used except a boat powered by an electric motor with a power rating not to exceed 3.5 horsepower; and (iii) no boat of a length greater than fifteen (15) feet, except canoes, shall be launched or used. (c) The lake which is depicted on the Plats of the Development and which may become a part of the Common Property shall be maintained only as a lake and, to this end, the Association shall not cause or permit to be caused any act or acts to the contrary.
Section 6.18 Animals. No animals, including birds, insects, and reptiles, may be kept on any Lot unless kept thereon solely as household pets and not for commercial purposes. No animal shall be allowed to become a nuisance. No Structure for the cage, housing or confinement of any animal shall be constructed, placed or altered on any Lot unless plans and specifications for said Structure have been approved by the ACC.
Section 6.19 Solid Waste.
(a) No person shall dump rubbish, garbage, or any other form of solid waste on any Lot or on Common Property.
(b) Except during approved construction, no person shall burn rubbish, garbage, or any other form of solid waste on any Lot or Common Property.
(c) Except for building materials employed during the course of construction of any Structure approved by the ACC, no lumber, metals, bulk materials or solid waste of any kind shall be kept, stored, or allowed to accumulate on any Lot unless screened or otherwise handled in a manner set forth in the Design Standards.
(d) If rubbish, garbage, or any other form of solid waste is to be disposed of by being collected on a regular and recurring basis, containers may be placed in the open on any day that pick-up is to be made, in order to provide access to persons making such pick-up. At all other times such containers shall be screened or enclosed in a manner set forth in the Design Standards. Guidelines relating to the type of containers permitted, the manner of storage and the place of pickup may also be included in the Design Standards.
(a) No person shall dump rubbish, garbage, or any other form of solid waste on any Lot or on Common Property.
(b) Except during approved construction, no person shall burn rubbish, garbage, or any other form of solid waste on any Lot or Common Property.
(c) Except for building materials employed during the course of construction of any Structure approved by the ACC, no lumber, metals, bulk materials or solid waste of any kind shall be kept, stored, or allowed to accumulate on any Lot unless screened or otherwise handled in a manner set forth in the Design Standards.
(d) If rubbish, garbage, or any other form of solid waste is to be disposed of by being collected on a regular and recurring basis, containers may be placed in the open on any day that pick-up is to be made, in order to provide access to persons making such pick-up. At all other times such containers shall be screened or enclosed in a manner set forth in the Design Standards. Guidelines relating to the type of containers permitted, the manner of storage and the place of pickup may also be included in the Design Standards.
Section 6.20 Nuisances. No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereof which may be or become any annoyance or nuisance to the community.
ARTICLE VII
EASEMENTS, ZONING AND OTHER RESTRICTIONS
EASEMENTS, ZONING AND OTHER RESTRICTIONS
Section 7.01 Easements.
(a) Declarant hereby expressly reserves to the Declarant, its successors and assigns forever, the right to create perpetual easements in, on, over and under any part of the Common Property or the Property owned by Declarant for any purpose which Declarant deems necessary, including, by way of example, and not limitation, the following.
(i) the erection, installation, construction and maintenance of wires, lines, conduits and poles and the necessary or proper attachments in connection with the transmission of electricity, telephone, cable television cables and other utilities and similar facilities;
(ii) the erection, installation, construction and maintenance of stormwater drains, land drains, public and private sewers, irrigation systems, pipelines for supplying gas, water and heat, and for any other public or quasi-public facility, service or function;
(iii) slope control purposes, including the right to grade and plant slopes and prevent the doing of any activity which might interfere with slopes or which might create erosion or sliding problems or which might change, obstruct or retard drainage flow;
(iv) the planting or replanting of hedges, shrubbery, bushes, trees, flowers and plants of any nature; and
(v) lake maintenance, access and recreational use for portions of the Property abutting lakes which easement may be for the benefit of the Declarant and Owners. No easement shall be granted to the Association or others by Declarant to permit any persons or person using the lake or lakes on Common Property to enter onto any portion of a Lot not covered by the waters of such lakes unless such entering person is the Owner of the Lot.
(b) No owner shall have any right to use any easement created by the Declarant in, on or over any portion of the Property unless such easement has been assigned by the Declarant to the Association.
(a) Declarant hereby expressly reserves to the Declarant, its successors and assigns forever, the right to create perpetual easements in, on, over and under any part of the Common Property or the Property owned by Declarant for any purpose which Declarant deems necessary, including, by way of example, and not limitation, the following.
(i) the erection, installation, construction and maintenance of wires, lines, conduits and poles and the necessary or proper attachments in connection with the transmission of electricity, telephone, cable television cables and other utilities and similar facilities;
(ii) the erection, installation, construction and maintenance of stormwater drains, land drains, public and private sewers, irrigation systems, pipelines for supplying gas, water and heat, and for any other public or quasi-public facility, service or function;
(iii) slope control purposes, including the right to grade and plant slopes and prevent the doing of any activity which might interfere with slopes or which might create erosion or sliding problems or which might change, obstruct or retard drainage flow;
(iv) the planting or replanting of hedges, shrubbery, bushes, trees, flowers and plants of any nature; and
(v) lake maintenance, access and recreational use for portions of the Property abutting lakes which easement may be for the benefit of the Declarant and Owners. No easement shall be granted to the Association or others by Declarant to permit any persons or person using the lake or lakes on Common Property to enter onto any portion of a Lot not covered by the waters of such lakes unless such entering person is the Owner of the Lot.
(b) No owner shall have any right to use any easement created by the Declarant in, on or over any portion of the Property unless such easement has been assigned by the Declarant to the Association.
Section 7.02 Easement Area. The word “Easement Area” as used herein shall mean those areas on any Lot with respect to which easements are shown on a recorded deed or on any filed or recorded map or plat relating thereto.
Section 7.03 Entry. The Declarant and its employees, agents, successors, and assigns, shall have the right at all reasonable times to enter upon all or part of each Easement Area for any of the purposes for which such Easement Area is reserved, without being deemed to have committed a trespass or wrongful act solely by reason of such entry and the carrying out of such purposes, provided the same are done in accordance with the provisions of this Section. The Declarant and its employees, agents, successors and assigns shall be responsible for leaving such Lot in the same condition as prior to entry as is reasonably possible following any work or activity undertaken in an Easement Area.
Section 7.04 Zoning and Private Restrictions. None of the covenants, restrictions or easements created or imposed by this Declaration shall be construed as permitting any action prohibited by applicable zoning laws, or by the laws, rules or regulations of any governmental body. In the event of any conflict between such laws, rules or regulations and the covenants, restrictions and easements created or imposed by Declaration, the most restrictive provision shall govern and control.
ARTICLE VIII
ENFORECMENT
ENFORECMENT
Section 8.01 Right of Enforcement. This Declaration and the Restrictions contained herein shall inure to the benefit of and shall be enforceable by (i) the Declarant so long as it is an Owner, (ii) the Association; (iii) each Owner, his legal representatives, heirs, successors and assigns; and (iv) the holder of any deed to secure debt upon any Lot
Section 8.02 Right of Abatement.
(a) Except where different notice provisions are provided in Section 5.11 and 6.14, in the event of a violation or breach of any restriction contained in this Declaration the Association shall be given written notice by certified mail to the Owner setting forth in reasonable detail the nature of such violation or breach and the action or actions needed to be taken to remedy such violation or breach. If the Owner shall fail to take reasonable steps to remedy such violation or breach within ten (10) days after mailing of said written notice, then the Association shall have the Right of Abatement (defined in paragraph (b) below) subject only to the superior right of holders deeds to secure debt described in paragraph 4.01(d)(ii).
(b) The Right of Abatement, as used in this Section and in Sections 5.11 and 6.14 hereof, means the right of the Association, through its agents and employees, to enter at all reasonable times upon any Lot or Structure, as to which a violation, breach or other condition to be remedied exists, and to take the actions specified in the notice to the Owner to abate, extinguish, remove, or repair such violation, breach or other condition which may exist thereon contrary to the provisions hereof, without being deemed to have committed a trespass or wrongful act solely by reason of such entry and such actions, provided such entry and such actions are carried out in accordance with the provisions of this Section, and with the cost thereof including the costs of collection including reasonable attorneys’ fees, together with interest thereon at the lower of the highest rate permitted by Law of 18% to be a binding personal obligation of such Owner enforceable in law, as well as a lien on such Owner’s Lot enforceable pursuant to the provisions
(a) Except where different notice provisions are provided in Section 5.11 and 6.14, in the event of a violation or breach of any restriction contained in this Declaration the Association shall be given written notice by certified mail to the Owner setting forth in reasonable detail the nature of such violation or breach and the action or actions needed to be taken to remedy such violation or breach. If the Owner shall fail to take reasonable steps to remedy such violation or breach within ten (10) days after mailing of said written notice, then the Association shall have the Right of Abatement (defined in paragraph (b) below) subject only to the superior right of holders deeds to secure debt described in paragraph 4.01(d)(ii).
(b) The Right of Abatement, as used in this Section and in Sections 5.11 and 6.14 hereof, means the right of the Association, through its agents and employees, to enter at all reasonable times upon any Lot or Structure, as to which a violation, breach or other condition to be remedied exists, and to take the actions specified in the notice to the Owner to abate, extinguish, remove, or repair such violation, breach or other condition which may exist thereon contrary to the provisions hereof, without being deemed to have committed a trespass or wrongful act solely by reason of such entry and such actions, provided such entry and such actions are carried out in accordance with the provisions of this Section, and with the cost thereof including the costs of collection including reasonable attorneys’ fees, together with interest thereon at the lower of the highest rate permitted by Law of 18% to be a binding personal obligation of such Owner enforceable in law, as well as a lien on such Owner’s Lot enforceable pursuant to the provisions
of Section 8.04 hereof. Such lien shall be superior to any and all charges, liens or encumbrances which may in any manner arise or be imposed upon the Lot after such entry whether arising from or imposed by judgment or decree or by any agreement, contract, mortgage, deed to secure debt, or other instrument, excepting only (i) such liens for taxes or other public charges as are by applicable law made superior, (ii) the liens created by Section 4.01 hereof and (iii) all first lien and purchase money secondary deeds to secure debt given to secure a loan from an institutional lender which makes residential mortgage loans in the ordinary and primary course of its business.
Section 8.03 Specific Performance. Nothing contained in this Declaration shall be deemed to affect or limit the rights of the Declarant, the Association or any Owner to enforce the Restrictions by appropriate judicial proceedings or to recover damages. However, it is hereby declared that it may be impossible to measure accurately in money the damages which will accrue
to a beneficiary hereof, its transferees, successors or assigns, by reason of a violation of, or failure to perform any of the obligations provided by, this Declaration; and therefore, any beneficiary hereof shall be entitled to relief by way of injunction or specific performance, as well as any other relief available at law or in equity, to enforce the provisions hereof.
to a beneficiary hereof, its transferees, successors or assigns, by reason of a violation of, or failure to perform any of the obligations provided by, this Declaration; and therefore, any beneficiary hereof shall be entitled to relief by way of injunction or specific performance, as well as any other relief available at law or in equity, to enforce the provisions hereof.
Section 8.04 Collection of Assessments and Enforcement of Lien.
(a) If any assessment, interest, cost or other charge is not paid as required by this Declaration, the Association may bring either an action at law against the Owner personally obligated to pay the same, or an action to foreclose any lien created by this Declaration against the Lot or Lots subject to the lien, or both, for the purpose of collecting such assessment, cost or charge, plus any interest thereon and costs of collection, including reasonable attorneys’ fees.
(b) As an additional remedy, but in no way as a limitation on the remedies, if any assessment, interest, cost or other charge is not paid as required by this Declaration, each Owner hereby grants to the Association and its assigns the following irrevocable power of attorney: To sell the said Lot or Lots subject to the lien at auction, at the usual place for conducting sales at the Courthouse in Gwinnett County, Georgia, to the highest bidder for cash, after advertising the time, terms and place of such sale once a week for four (4) weeks immediately preceding such sale (but without regard to the number of days) in the paper in which the Sheriff’s advertisements for Gwinnett County, Georgia are published, all other notice being hereby waived by each Owner, and the Association or any person on behalf of the Association, or assigns may bid and purchase at such sale and thereupon execute and delivery to the purchaser or purchasers at such sale a conveyance of said property in fee simple, which conveyance shall contain recitals as to the happenings of the default upon which the execution of the power of sale herein granted depends, and each Owner hereby constitutes and appoints the Association, the agent and attorney in fact of each owner to make such recitals, and hereby covenants and agrees that the recitals so be made by the Association, shall be binding and conclusive upon the Owner whose property is the subject matter of such sale, and the heirs, executors, administrators, and assigns of such Owner, and that the conveyance to be made by the Association shall be effectual to bar all equity of redemption of such Owner, or the successor in interest of such Owner, in and to said Lot or Lots, and the Association or assigns shall collect the proceeds of such sale and, after reserving therefrom the entire amount of assessment, interest, cost or other charge due, together with all costs and expenses of sale and fifteen (15) per centrum of the aggregate amount due for attorneys’ fees, shall pay any excess to such Owner, or to the heirs or assigns of such Owner as provided by law. The power and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise and are granted as cumulative to the remedies for collection of said indebtedness
provided by law.
(c) WAIVER. EACH OWNER, BY ACCEPTANCE OF A DEED CONVEYING A LOT SUBJECT TO THIS DECLARATION, WAIVES ANY RIGHT WHICH OWNER MAY HAVE UNDER THE CONSTITUTION OR THE LAWS OF THE STATE OF GEORGIA OR THE CONSTITUTION OR THE LAWS OF THE UNITED STATES OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OR ANY RIGHT OR REMEDY PROVIDED BY THIS DECLARATION AND OWNER WAIVES OWNER’S RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS DECLARATION ON THE GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL WAIVERS BY OWNER IN THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY, AFTER OWNER HAS FIRST BEEN ALLOWED THE OPPORUNITY TO CONSULT LEGAL COUNSEL WITH RESPECT TO OWNER’S POSSIBLE RIGHTS.
(a) If any assessment, interest, cost or other charge is not paid as required by this Declaration, the Association may bring either an action at law against the Owner personally obligated to pay the same, or an action to foreclose any lien created by this Declaration against the Lot or Lots subject to the lien, or both, for the purpose of collecting such assessment, cost or charge, plus any interest thereon and costs of collection, including reasonable attorneys’ fees.
(b) As an additional remedy, but in no way as a limitation on the remedies, if any assessment, interest, cost or other charge is not paid as required by this Declaration, each Owner hereby grants to the Association and its assigns the following irrevocable power of attorney: To sell the said Lot or Lots subject to the lien at auction, at the usual place for conducting sales at the Courthouse in Gwinnett County, Georgia, to the highest bidder for cash, after advertising the time, terms and place of such sale once a week for four (4) weeks immediately preceding such sale (but without regard to the number of days) in the paper in which the Sheriff’s advertisements for Gwinnett County, Georgia are published, all other notice being hereby waived by each Owner, and the Association or any person on behalf of the Association, or assigns may bid and purchase at such sale and thereupon execute and delivery to the purchaser or purchasers at such sale a conveyance of said property in fee simple, which conveyance shall contain recitals as to the happenings of the default upon which the execution of the power of sale herein granted depends, and each Owner hereby constitutes and appoints the Association, the agent and attorney in fact of each owner to make such recitals, and hereby covenants and agrees that the recitals so be made by the Association, shall be binding and conclusive upon the Owner whose property is the subject matter of such sale, and the heirs, executors, administrators, and assigns of such Owner, and that the conveyance to be made by the Association shall be effectual to bar all equity of redemption of such Owner, or the successor in interest of such Owner, in and to said Lot or Lots, and the Association or assigns shall collect the proceeds of such sale and, after reserving therefrom the entire amount of assessment, interest, cost or other charge due, together with all costs and expenses of sale and fifteen (15) per centrum of the aggregate amount due for attorneys’ fees, shall pay any excess to such Owner, or to the heirs or assigns of such Owner as provided by law. The power and agency hereby granted are coupled with an interest and are irrevocable by death or otherwise and are granted as cumulative to the remedies for collection of said indebtedness
provided by law.
(c) WAIVER. EACH OWNER, BY ACCEPTANCE OF A DEED CONVEYING A LOT SUBJECT TO THIS DECLARATION, WAIVES ANY RIGHT WHICH OWNER MAY HAVE UNDER THE CONSTITUTION OR THE LAWS OF THE STATE OF GEORGIA OR THE CONSTITUTION OR THE LAWS OF THE UNITED STATES OF AMERICA TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OR ANY RIGHT OR REMEDY PROVIDED BY THIS DECLARATION AND OWNER WAIVES OWNER’S RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS DECLARATION ON THE GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL WAIVERS BY OWNER IN THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY, AFTER OWNER HAS FIRST BEEN ALLOWED THE OPPORUNITY TO CONSULT LEGAL COUNSEL WITH RESPECT TO OWNER’S POSSIBLE RIGHTS.
Section 8.05 No Waiver. This failure of the Declarant, the Association, or the Owner of any Lot, his or its respective legal representatives, heirs, successors, and assigns, to enforce any Restrictions herein contained shall in no event to be considered a waiver of the right to do so thereafter, as to the same violation or breach or as to any violation or breach occurring prior to or
subsequent thereto.
subsequent thereto.
ARTICLE IX
DURANTION AND EMENDMENT
DURANTION AND EMENDMENT
Section 9.01 Duration. This Declaration and the Restrictions contained herein shall run with and bind the Property for a period of twenty (20) years from and after the date when this Declaration is filed for record with the Clerk of the Superior Court of Gwinnett County, Georgia, after which time this Declaration and the Restrictions shall be automatically renewed for successive periods of ten (10) years; provided, however, that after the end of the said twenty
(20) year period and during any ten (10) year renewal period (but only during such renewal period), this Declaration and the Restrictions contained herein may be terminated by an instrument executed by the proper Association officers and recorded in the office of the Clerk of the Superior Court of Gwinnett County, Georgia, or in such other place of recording as may be appropriate at the time of the execution of such instrument, pursuant to a resolution approving such termination which is approved by a two thirds (2/3) vote of those Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association.
(20) year period and during any ten (10) year renewal period (but only during such renewal period), this Declaration and the Restrictions contained herein may be terminated by an instrument executed by the proper Association officers and recorded in the office of the Clerk of the Superior Court of Gwinnett County, Georgia, or in such other place of recording as may be appropriate at the time of the execution of such instrument, pursuant to a resolution approving such termination which is approved by a two thirds (2/3) vote of those Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association.
Section 9.02 Amendments by Declarant. During any period in which Declarant retains the right to appoint and remove any directors and officers of the Association, Declarant may amend his Declaration by an instrument in writing filed and recorded in the Land Records of the Superior Court of Gwinnett County, Georgia, without the approval of any Owner or mortgagee; provided, however, that (i) in the event that such amendment materially alters or changes any Owner’s right to the use and enjoyment of such Owner’s Lot or of the Common Property as set forth in this Declaration or if such amendments adversely affects the title to any Lot, such amendment shall be valid only upon the written consent thereto by a majority of the then existing Owners affected thereby, or (ii) in the event that such amendment would materially and adversely affect the security title and interest of any mortgagee, such amendment shall be valid as to such mortgages only upon the written consent thereto of such mortgagees so affected. Any amendment made pursuant to this
Section 9.02 shall be certified by Declarant as having been duly approved by Declarant, and such Owners and mortgagees if required, and shall be effective only upon recordation or at such later date as shall be specified in the amendment itself. Each Owner, by acceptance of a deed or other conveyance to a Lot, agrees to be bound by such amendments as are permitted by this Section 9.02 and further agrees that, if requested to do so by Declarant, such Owner will consent to the amendment of this Declaration or any other instruments relating to the Development (i) if such amendment is necessary to bring any provision hereof or thereof into compliance or conformity with the provisions of any applicable governmental statute, rule or regulation or any judicial determination which shall be in conflict therewith, (ii) if such amendment is necessary to enable any reputable title insurance company to issue title insurance coverage with respect to any Lots subject to this Declaration, (iii) if such amendment is required by an institutional or governmental lender or purchaser of mortgage loans, including, for example, the Federal National Mortgage or Federal Home Loan Mortgage Corporation, to enable any governmental agency or reputable private insurance company to insure mortgage loans on the Lots subject to this Declaration or (v) if such amendment is necessary to correct a scrivener’s error in the drafting of this Declaration.
Section 9.03 Amendments by Association. Amendments to this Declaration, other than those authorized by Section 9.02 hereof, shall be proposed and adopted in the following manner:
(a) Notice of the subject matter of the proposed amendment shall be included in the notice of the meeting of the Association at which such proposed amendment is to be considered and shall be delivered to each member of the Association.
(b) At such meeting, a resolution adopting a proposed amendment may be proposed by either the Board or by members of the Association. Such amendment must be approved by Owners holding at least two-thirds (2/3) of the total votes in the Association provided, however, (i) that any amendment which materially and adversely affects the security title and interest of any mortgagee must be approved by such mortgagee and (ii) during any period in which Declarant has the right to appoint and remove officers and directors of the Association, such amendment must be approved by Declarant.
(c) The agreement of the required percentage of the Owners and, where required, the Declarant and any mortgagee, to any amendment of this Declaration shall be evidenced by their execution of such amendment, or, in the alternative, and provided that Declarant does not then have the right to approve such amendment, the sworn statement of the President and any Vice President or the Secretary of the Association attached to or incorporated in the amendment executed by the Association, which sworn statement shall state unequivocally that the Agreement of the required parties was lawfully obtained. Any such amendment of this Declaration shall become effective only when recorded or at such later date as may be specified in the Amendment itself.
(a) Notice of the subject matter of the proposed amendment shall be included in the notice of the meeting of the Association at which such proposed amendment is to be considered and shall be delivered to each member of the Association.
(b) At such meeting, a resolution adopting a proposed amendment may be proposed by either the Board or by members of the Association. Such amendment must be approved by Owners holding at least two-thirds (2/3) of the total votes in the Association provided, however, (i) that any amendment which materially and adversely affects the security title and interest of any mortgagee must be approved by such mortgagee and (ii) during any period in which Declarant has the right to appoint and remove officers and directors of the Association, such amendment must be approved by Declarant.
(c) The agreement of the required percentage of the Owners and, where required, the Declarant and any mortgagee, to any amendment of this Declaration shall be evidenced by their execution of such amendment, or, in the alternative, and provided that Declarant does not then have the right to approve such amendment, the sworn statement of the President and any Vice President or the Secretary of the Association attached to or incorporated in the amendment executed by the Association, which sworn statement shall state unequivocally that the Agreement of the required parties was lawfully obtained. Any such amendment of this Declaration shall become effective only when recorded or at such later date as may be specified in the Amendment itself.
ARTICLE X
ANNEXATION
ANNEXATION
Portions of the Contiguous Property may be annexed to the Property by the Declarant without the consent of the Members at any time and from time to time for a period of ten (10) years following the date on which this Declaration is filed in the Office of the Clerk of the Superior Court of Gwinnett County, Georgia. Such annexation shall be accomplished by filing in the office of the Clerk of the Superior Court of Gwinnett County an approved subdivision plat describing the real property to be annexed to the Property and by including on such subdivision plat a statement that expressly sets forth the Declarant’s intention to make such annexed real property subject to the provisions of this Declaration. At the expiration of ten (10) years following the date of the filing of this Declaration, no real property may be annexed to the Property unless such annexation is approved by a two-thirds (2/3) vote of the Members of the Association who are present in person or by proxy and voting at a meeting of Members duly held in accordance with the provisions of the By-Laws of the Association.
ARTICLE XI
MISCELLANEOUS
MISCELLANEOUS
Section 11.01 No Reverter. No restriction herein is intended to be, or shall be construed as, a condition subsequent or as creating a possibility of reverter.
Section 11.02 Severability. A determination by a court that any provision hereof is invalid for any reason shall not affect the validity of any other provision hereof. Section 11.03 Headings. The headings of the Articles and Sections hereof are for
convenience only and shall not affect the meaning or interpretation of the contents of this Declaration.
Section 11.04 Gender. Throughout this Declaration, the masculine gender shall be deemed to include the feminine and neuter, and the singular the plural, and vice versa. Section 11.05 Notices. All amendments, notices, requests, objections, waivers, rejections, agreements, approvals, disclosures, or consent of any kind made pursuant to this Declaration, whether made by the Declarant, the Association, the ACC, the Owner, or any other person, shall be in writing. All such writings shall be sufficient only if hand delivered or if deposited in the United States Mail, certified return receipt requested, with sufficient postage, and sent to the following addresses:
(a) Declarant: Chatham Communities, Inc.
Alvin P. Nash, Vice President
Suite 410, 6075 Roswell Road
Atlanta, Georgia 30328
(a) Declarant: Chatham Communities, Inc.
Alvin P. Nash, Vice President
Suite 410, 6075 Roswell Road
Atlanta, Georgia 30328
The Board of Directors of the Cooper’s Pond Homeowners’ Association, Inc. proposes the
following Amendments to the Declaration of Protective Covenants for the neighborhood:
1. Section 6.02 is deleted in its entirety with the following substituted in its place:
6.02. Residential Use. Each Lot shall be used for residential purposes only, and no trade or business of any kind may be conducted in or from a Lot or any part of the Community, including business uses ancillary to a primary residential use, except that the Owner or Occupant residing in a dwelling on a Lot may conduct such ancillary business activities within that dwelling so long as:
- (1) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from the exterior of the dwelling;
- (2) the business activity does not involve visitation of the Lot by employees, clients, customers, suppliers, or other business invitees; provided, however, this provision shall not preclude delivery of materials or items by United States Postal Service delivery or by other customary parcel delivery services (U.P.S., Federal Express, etc.);
- (3) the business activity conforms to all zoning requirements for the Community;
- (4) the business activity does not increase traffic in the Community;
- (5) the business activity does not increase the insurance premium paid by the Association or otherwise negatively affect the ability of the Association to obtain insurance coverage; and
- (6) the business activity is consistent with the residential character of the Community and does not constitute a nuisance or a hazardous or offensive use or threaten the security or safety of other residents of the Community, as may be determined in the Board’s sole discretion.
The terms “business” and “trade,” as used in this provision, shall be construed to have their ordinary, generally accepted meanings, and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider’s family and for which the provider receives a fee,
compensation, or other form of consideration, regardless of whether: (i) such activity is engaged in full or part-time; (ii) such activity is intended to or does generate a profit; or (iii) a license is required therefor.
2. The following Section 6.21 is hereby added:
6.21. Number of Occupants.
(a) The maximum number of occupants in a dwelling on a Lot shall be limited to two (2) people per bedroom in the dwelling as originally constructed. “Occupancy,” for purposes hereof, shall be defined as staying overnight in a dwelling for a total of more than thirty (30) days, either consecutive or nonconsecutive, in any calendar year. Upon written application, the
Board shall grant variances to this restriction to comply with provisions of the Fair Housing Amendments Act of 1988 or any amendments thereto.
(b) If an Owner of a Lot is a corporation, partnership, trust or other legal entity not being a natural person, the entity shall designate in writing to the Board the name(s) of the natural person(s) who will occupy the dwelling on the Lot who must have a significant relationship with the entity; provided, however, in the event the corporation, partnership, trust or other
legal entity not being a natural person, or any officer, director, member, employee, trustee, beneficiary, partner or agent of such legal entity, receives any consideration or benefit, including, but not limited to, a fee, service, gratuity, or emolument from or on behalf of the designated person(s), then such arrangement shall be considered leasing for purposes of this Declaration and the Owner shall be required to comply with Section 6.22 of this Declaration. The designated person(s) to occupy the dwelling may not be changed, added to, or modified more frequently than once every two (2) years.
3. The following Section 6.22 is hereby added:
6.22 Leasing. Leasing of any Lot may not occur without the express approval of the Board of the Association. All leases shall be limited to a single tenant or family and shall be subject to the occupancy limits set forth in Section 6.21. The Board shall approve any application for leasing of a Lot so long as either (a) no more than ten (10) Lots are leased at a single time or (b) the applicant can demonstrate that failure to allow such leasing will create an undue hardship financially, including, but not limited to, inability to service existing debt upon the Lot or imminent foreclosure. Subleasing is expressly prohibited, and no Owner who occupies a Lot shall lease any portion of their Lot or residence to any unrelated individual(s).